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Does Penn State Settlement Shield NCAA Officials from Criminal Liability?

On behalf of McClenahen Law Firm posted in Penn State on Monday, January 19, 2015.

Lost amid the jubilation over the repeal of the so-called "Consent Decree" is the effect that last week's settlement of the Corman-McCord lawsuit against the NCAA will have upon possible criminal charges against certain NCAA officials. As I previously noted in a blog post last November, members of the Mark Emmert Gang look pretty damn guilty of the crimes of theft by extortion and criminal conspiracy to commit theft by extortion as defined by the Pennsylvania Crimes Code. Pursuant to its own by-laws, the NCAA did not have the legal authority to impose sanctions, yet threatened to impose the death penalty or other sanctions against Penn State anyway unless Penn State forked over a significant sum of money and forfeited property rights. This looks like a pretty cut and dried case of theft by extortion to me and most other lawyers I have talked to, including some prosecutors. By contrast, if Penn State had actually broken NCAA rules, giving the NCAA the right to impose appropriate sanctions, then the NCAA's actions would be part and parcel of good faith negotiations with Penn State. Thus, there would be no crime.

A plain reading of the NCAA by-laws coupled with damaging internal emails written by NCAA officials show quite clearly that the NCAA never had the authority to impose any sanctions at all, let alone the death penalty. Instead, they were hoping to "bluff" Penn State into believing the NCAA really did have the authority to make up rules as it went along and impose sanctions in the absence of any actual NCAA violations. It is highly unlikely that former Penn State president Rodney Erickson lied about death penalty threats, which induced him to sign the "Consent Decree." So clear is the case for theft by extortion that there has already speculation in the Centre County legal community as to which magisterial district judge would be handling the arraignments when certain NCAA officials are ultimately charged.

But we in the Central Pennsylvania legal community were not the only ones who realized the strong possibility of criminal charges against NCAA officials. So too did the NCAA's highly paid and highly skilled team of lawyers, which realized that any settlement to the McCord-Corman suit should attempt to shield their clients from possible criminal liability. The result was the following exonerating sentence in the settlement, "Penn State acknowledges the NCAA's legitimate and good faith interest and concern regarding the Jerry Sandusky matter." It is no accident or coincidence that this language is almost a cut-and paste job from the portion of Pennsylvania's theft by extortion statute, which creates a defense to this crime.

No matter what the language of the settlement, the NCAA never had the right to impose the death penalty or any other sanction against a school, which never actually violated an NCAA rule. Accordingly, Penn State's acknowledgement of the NCAA's "legitimate" and "good faith" interest is devoid of any real meaning. The Declaration of Independence was signed in 1776, and even if two parties "agree" that it was signed in 1861, it does not change the fact that it was signed in 1776, and it does not change the fact that there are mountains of evidence, which can prove beyond a reasonable doubt that the Declaration of Independence was signed in 1776.

Given the amount of damaging evidence against NCAA officials, I believe that the Attorney General's Office could still file criminal charges, despite Penn State's "acknowledgement" that the NCAA really was not engaged in criminal activity after all. That being said, Penn State's "acknowledgment" will make the job for prosecutors a whole lot harder and the job for the NCAA's defense attorneys a whole lot easier.

Another consideration is whether Penn State will endorse a criminal case against NCAA officials and fully cooperate with the Attorney General's Office. Certainly, some in the Penn State administration and BOT would like to see the whole matter finally laid to rest, while most members of Nittany Nation and even NCAA bashers from other fan bases would love to see an Emmert Gang perp walk. No matter how politically popular criminal charges would be among Pennsylvania voters, I am not sure that the Attorney General will be willing to expend a great deal of resources pursuing NCAA officials unless she has the full backing of the university.

Matt McClenahen is a criminal defense attorney in State College, Pennsylvania. He is a Penn State alumnus, football season ticket holder and avid college football fan.

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